Murugesan vs Chinnanan
2022 Latest Caselaw 8643 Mad

Citation : 2022 Latest Caselaw 8643 Mad
Judgement Date : 25 April, 2022

Madras High Court

Murugesan vs Chinnanan on 25 April, 2022

                                                                                        SA.No.350/2022




                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 25.04.2022

                                                        CORAM:

                                    THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                                      SA.No.350/2022

                    Murugesan                                                          .. Appellant /
                                                                                            Plaintiff

                                                              Vs.

                    1.Chinnanan
                    2.Rajendran
                    3.Vadivelu
                    4.Kasi                                                             .. Respondents
                                                                                       / Defendants



                    Prayer:- Second Appeal preferred under 100 of CPC against the decree and
                    judgment passed in AS.No.57/2020 dated 25.02.2021 by the learned
                    Principal Subordinate Judge, Namakkal confirming the decree and
                    judgment dated 27.08.2020 passed by the learned Principal District
                    Munsif, Namakkal in OS.No.409/2015.

                                      For Appellant       :         Mr.S.Subramanian




https://www.mhc.tn.gov.in/judis                               1
                                                                                            SA.No.350/2022




                                                           JUDGMENT

(1) The plaintiff in the suit in OS.No.409 of 2015 on the file of the

learned Principal District Munsif, Namakkal, is the appellant in the

above Second Appeal.

(2) Brief facts that are necessary for the disposal of this Second Appeal

are as follows.

(3) The appellant filed the suit in OS.No.409/2015 against the

respondents herein for declaration of title and permanent injunction

in respect of the suit property which is described as a house site

and house in S.No.201/63 in Anna Nagar, Minnampalli Village,

Namakkal District.

(4) It is the case of the appellant/plaintiff that the suit property was

originally purchased by the plaintiff's father one Pethaboyan by

virtue of a registered Sale Deed dated 20.03.1969. It is further

stated that the suit property was purchased by his father as a vacant

site and that he got right to the property as a legal heir of his father.

It is the specific case of the appellant/plaintiff that taking

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advantage of his absence, defendants 1 to 4/respondents 1 to 4

herein have obtained patta for the suit property which lies on the

Western side of the property in which the appellant/plaintiff is

residing.

(5) The suit was contested by the 3rd respondent herein/3rd defendant in

the suit, by filing a written statement specifically stating that the

suit property lies in S.No.201/61 and the suit is filed suppressing

the measurements and the location of the suit property with

reference to survey field. The suit is also contested on the ground

that it is bad for non-joinder of necessary parties. It is further

stated in the written statement that the appellant/plaintiff has filed a

suit earlier in OS.No.579/2007 as against defendants 3 and 4 /

respondents 3 and 4 herein claiming pathway right in respect of the

suit property and that the said suit was withdrawn after

appointment of an Advocate Commissioner and filing of his Report

in Court. In short, it is contended by respondents/defendants that

the suit property to which the appellant/plaintiff claimed right of

pathway in the earlier suit, has now come forward with the suit for

SA.No.350/2022

declaration of title in respect of the same property which is the

subject matter of the earlier suit.

(6) The Trial Court, after framing necessary issues held that the

appellant/plaintiff has not proved his title to the suit property. The

Trial Court, having regard to the fact that the property purchased

by his father was divided between the plaintiff and his elder brother

and they are in possession of the entire property purchased by their

father, held that the appellant/plaintiff is not entitled to claim any

right in respect of the property which lies on the Western side of

his house. After considering the plan marked as witness document

No.3, the Trial Court held that the plaintiff who is residing on the

Western part of S.No.201/63 has no right on the further West of his

house. Since the Trial Court gave a clear finding that the

appellant/plaintiff is not entitled to any relief, the suit was

dismissed. Aggrieved by the judgment and decree of the Trial

Court, the plaintiff preferred an appeal in AS.No.57/2020 on the

file of the learned Principal Subordinate Judge, Namakkal.

SA.No.350/2022

(7) The Lower Appellate Court also, after considering the evidence

independently came to the conclusion that the appellant/plaintiff

has filed two earlier suits namely OS.No.579/2007 and

OS.No.361/2013 in respect of the suit property as admitted by him

and that the third suit without disclosing the previous suit is not

maintainable. Since the plaintiff has not proved his title in respect

of the land on the further West of his house, the Lower Appellate

Court dismissed the appeal on the ground that the appellant has not

proved any right beyond the portion of his house on the Western

side of S.No.201/63. Aggrieved by the concurrent judgments and

decrees of the Courts below, the appellant/plaintiff has filed the

present Second Appeal.

(8) The appellant has raised the following substantial questions of law

in the Memorandum of Grounds of Appeal:-

(1) Whether the judgment and decree of the Courts below are legally sustainable inasmuch as they have not properly considered the Sale Deed Ex.A1, which clearly proves the title of the appellant with respect to the suit property?

SA.No.350/2022

(2) Whether the judgment and decree of the Courts below are legally sustainable inasmuch as they have failed to note that the father of the appellant has purchased the house as well as vacant site on the western side by Ex.A1? (3) Whether the judgment and decree of the Courts below are legally sustainable inasmuch as they have not properly considered the old patta given by the revenue officials as well as the Commissioner's report?

(4) Whether the judgment and decree of the Courts below are legally sustainable inasmuch as the respondents have not produced any documents of title and so the Courts below ought to have decreed the suit as patta as well as Sale Deed in favour of the father of the appellant have been produced by the appellant?

(9) This Court heard the learned counsel appearing for the appellant

and also perused the materials placed.

(10) From the pleadings and evidence considered by the Courts below,

this Court is unable to find any error or irregularity in the

judgments and decrees of the Courts below. The appellant/plaintiff

SA.No.350/2022

has come forward with a false case suppressing the material fact

that the property purchased by his father was shared by the

appellant/plaintiff and his elder brother. The appellant/plaintiff has

filed the suit in respect of the property which lies on the Western

side of his house property which is in the enjoyment of the

appellant. When the appellant has not produced any records or filed